International legal protections for combatants in the South African armed conflict.

Abstract:

The African National Congress (ANC) is engaged in an armed
conflict with the South African Government for control of South
Africa. ANC combatants are being prosecuted under South African
criminal law as rebels, a process which undermines the normative
value of the criminal law because it is in conflict with popular
support for the ANC. International law provides a humanitarian
alternative to the criminal law. This study investigates the
international legal protections available to combatants in the
conflict.
Lawful combatant status and prisoner of war status would only be
available if the South African armed conflict was classified as
international. It has been argued that the international status
of the ANC, derived from the denial of self-determination to the
South African people, internationalises its war against the South
African Government. Attempts have been made to enforce this
concept. Article 1(4) of Geneva Protocol 1 classifies armed
conflicts involving a movement representing a people with a right
of se If-determination against a .. racist re,gime" as international.
But South Africa did not accede to Protocol 1 and the argument
that it is custom fails because of insufficient international
support. Nevertheless, the developing situation justifies an
examination of the personal conditions required to gain protectedstatus.
The conditions in Article 4 of Geneva Convention 3 (1949) are onerous, making it impracticable in South Africa. Protocol
l's updated conditions are more suited to the armed conflict. The
Conventions and Protocol 1 also make available procedural and
substantive protections to combatants and deal with special
issues particular to South Africa.
The South African armed conflict can alternatively be classified
as non-international. Common Article 3 of the 1949 Conventions
applies because South Africa is party to them. Geneva Protocol 2
is not .applicable because South Africa is not a party to it.
Unfortunately, Article 3 only applies general humanitarian
principles and not protected status.
To conclude, because of the inadequate means for enforcing the
classification of the South African armed conflict as
international and the inadequacy of the protections available
under the law of non-international armed conflict, it is urged
that the Government confer ex-gratia. lawful status on ANC
combatants.